Vail Law: The crime of conspiracy is in the plotting, not the consummation of the act itself (column) |

Vail Law: The crime of conspiracy is in the plotting, not the consummation of the act itself (column)

The word itself — “conspiracy” — derives from the Latin ooze of con- (“with, together”) and spirare (“to breathe,” like “respiration”): To breathe together. It paints a certain picture and indubitably suggests close quarters in at least a metaphorical sense.

“Conspiracy” may be defined as “the act of conspiring together” or “an agreement among conspirators.” “Conspiring,” in turn, means “to plan together secretly to commit an illegal or wrongful act or to accomplish a legal purpose through illegal action.”

At law, conspiracy is defined as “an agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.”

This requires a bit of vivisection and may be thought of as two separate things. Both, however, require an agreement.

Meeting of the minds

First, if two thugs find each other knocking off the same 7-11 at the same time, then that is not conspiracy. That is kismet. Instead, the thugs must agree between themselves to knock off the convenience store or, having found one another, must agree to cooperate with one another in so doing in order for it to constitute conspiracy. The act of robbery being unlawful and the two actors having agreed with one another to commit the unlawful act, a conspiracy is formed.

The second way of looking at conspiracy is perhaps less “active.” What is required is for the parties to agree to take an action that, while innocent if done alone, becomes unlawful if agreement is made to take the act together.

Say, a manufacturer determines to raise the price of certain goods. No problem. Say, however, the first manufacturer agrees with a second and a third manufacturer of the same class of goods to raise the price at the same time and in the same amount. That sort of price fixing may be illegal and their conduct may rise to the level of conspiracy.

What is essential in both cases is a meeting of the minds and an agreement having been reached to commit the wrongful act.

It’s The thought that counts

A person is guilty of conspiracy if he or she: 1) agrees with the other person or persons that one or more of them will engage in conduct which constitutes such crime (or an attempt or solicitation to commit such crime); or 2) agrees to aid such other person or persons in the planning or commission of such crime (or an attempt or solicitation to commit such crime). In other words, it is the planning itself to commit a crime or to aid another in committing a crime that constitutes the offense.

Say Misters Sears and Burns plot to burn down Elton John’s proverbial Mission and only Burns actually takes action and sets the place ablaze. Even if Sears was sipping Grand Marnier on the beach at Cannes when the conflagration occurred and never once set so much as a tippy toe in whatever mythical location in which the Mission is located, Sears is just as guilty as Burns in plotting to do the dirty deed and has committed the crime of conspiracy co-equally with Burns.

In this case, the crime of conspiracy to commit arson is separate and distinct from the “target” crime of arson. It is the putting ones’ heads together for the purpose of plotting to commit the dirty deed that constitutes the crime of conspiracy. One thing to remember is that the deed itself does not necessarily need to actually be carried out.

Say Burns is intercepted on his way to the Mission while Sears is happily sipping Grand Marnier on the sandy beach at Cannes. Burns never gets to the Mission and never sets his wick to start the blaze. While the target crime of arson will never have been committed, the conspiracy itself lives on. The crime is in the plotting, not the consummation of the act itself.

Say Sears and Burns want the Mission torched but deign to get their hands dirty. Instead, they agree to hire a henchman or two more experienced in such things. They agree, however, that the Mission must be burned, and that they will hire Arsonists Inc. to do so. The result is just the same. The plan to burn down the Mission and their agreement to hire others to do so completes the crime.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,